HER HONOUR: These are proceedings for defamation arising out of the publication of two articles in The Sunday Telegraph and The Daily Telegraph. The nature of the articles, and the defamatory meanings specified by the plaintiff, are dealt with in an earlier judgment in the proceedings: Mooney v Nationwide News Pty Ltd [2014] NSWSC 938.
Since the commencement of the proceedings, the Chief Justice has published Practice Note SC CL 4 governing proceedings in the defamation list. The present application relates to the further interlocutory steps sought by the plaintiff in accordance with that Practice Note.
As this is the first substantive contest to come before the Court since the issue of the Practice Note, it is appropriate to state the principles that will be applied in the list for the guidance of practitioners.
Clauses 16 to 18 of the Practice Note state:
"16. At the second listing, the parties:
(a) will be expected to be ready to argue any objections to the defence and the reply;
(b) will be afforded an opportunity to demonstrate the need for any further interlocutory step before the matter is listed for hearing.
17. In determining the need for any further interlocutory step, the Court:
(a) may order the parties to serve their evidence;
(b) may order the parties to disclose limited categories of documents but will do so only if such an order is necessary for the resolution of the real issues in dispute in the proceedings;
(c) will not order any party to answer interrogatories except where, after considering the draft proposed interrogatories, the Defamation List Judge forms the view that they are necessary for the resolution of the real issues in dispute in the proceedings.
18. No application for any further interlocutory step (apart from the service of evidence) will be entertained unless the party seeking the order has given reasonable notice in writing to the opposing party and the Associate to the Defamation List Judge. Subject to the direction of the Defamation List Judge, any such application, whether by consent or otherwise, must be supported by an affidavit:
(a) succinctly stating the reason the party contends the order is necessary for the resolution of the real issues in dispute in the proceedings;
(b) in an application for disclosure of documents, identifying the classes of documents sought and the likely cost of such disclosure;
(c) in an application for an order to answer interrogatories, stating why interrogatories are considered necessary for the resolution of the real issues in dispute in the proceedings and attaching draft proposed interrogatories.
The plaintiff moves the Court for disclosure of documents and answers to interrogatories attached to a Notice of Motion filed 10 October 2014. However, at the time the application was argued, it was indicated by Mr Richardson, who appears for the plaintiff, that if the Court were minded to order that the defendant answer certain interrogatories, the outstanding requests for disclosure would not be pressed. Accordingly, it is appropriate first to turn to the question whether the Court should order the defendant to answer the proposed interrogatories.
By way of introductory comment, it may be noted that, by its defence filed 9 September 2014, the defendant has raised defences of justification, honest opinion statutory qualified privilege and common law qualified privilege. Further, the plaintiff has filed a reply alleging various matters of defeasance. It follows that issues relating to the defendant's state of mind at various points plainly arise.
The defendant has indicated that it refuses to answer any of the interrogatories proposed on behalf of the plaintiff. Having regard to the introduction of the new Practice Note and the desirability of giving guidance to practitioners, it is appropriate to set out the contested interrogatories in full (these were numbered 2 to 11 in the plaintiff's document):
1. [the "consideration interrogatory"] Prior to publishing the First Matter Complained Of, did the Defendant give any consideration as to the possibility of the matter complained of conveying any or all of the following imputations and, if so, which, what consideration was given, and what action was taken by the Defendant in light of such considerations:
1. The Plaintiff, whilst working for the Cronulla Sharks, covered up doping procedures at the club;
2. The Plaintiff, whilst working in a highly paid management position for the Cronulla Sharks, acted negligently by failing to report to the board of the Cronulla Sharks the injecting of players with equine substances not suitable for human use;
3. The Plaintiff was incompetent in carrying out his management role at the Cronulla Sharks by failing to report doping practices to the board of the Cronulla Sharks;
4. The Plaintiff deserved to be sacked from his management position at the Cronulla Sharks by concealing doping practices from the board of the Cronulla Sharks; and
5. The Plaintiff acted with gross incompetence in his management position with the Cronulla Sharks by knowingly permitting for a period of a few weeks, players to be injected with equine drugs that were not for human use?
1. [the "intention to convey and belief in the truth interrogatory"] Did the Defendant intend the First Matter Complained Of to bear all or any of the following imputations listed above at 1(a)-(e)? If so, which, and did the Defendant believe each was true at the time of publication of the matters complained of?
2. [the "information interrogatory"] Before publishing the First Matter Complained Of:
1. Did the Defendant have any information with respect to any of the material contained therein?
2. If the answer to (a) is yes,
1. What information did the Defendant have?
2. Who or what was the source of each item of information?
3. Identify all documents containing such information which the Defendant had in its possession at the time of publication.
4. Identify all documents containing such information as to which Defendant had been informed of their contents in parts thereof, but which it did not have in its possession.
5. State the use made of each of the documents described or referred to in (iii) and (iv) above.
6. Identify all statements containing such information made orally or conveyed by implication to the Defendant, whether in answer to enquiries or otherwise, identifying those statements made orally or verbally insofar as possible, together with such parts or the remainder of any conversation and background which are necessary for sense to be made of any of the statements so identified and who made those statements. Any implications seen or inferences drawn should be described.
7. Identify all matters of past experience and background or of contemporary history or notoriety and anything else relating to the First Matter Complained Of, which occurred to the Defendant prior to publication.
1. [the "enquiries interrogatory"] Before publishing the First Matter Complained Of, did the Defendant take any steps, including making enquiries with any person or persons, to verify the truth of the matters contained therein? If so:
1. in respect of which matters;
2. what steps were taken;
3. to who or whom (sic);
4. when;
5. where;
6. what was the substance and effect of the enquiry made;
7. what was the substance and effect of the reply received; and
8. identify all documents relevant to the answers above.
1. [the "other steps interrogatory"] Before publishing the First Matter Complained Of did the Defendant take any steps other than by way of enquiry of any person or persons with a view to ascertaining whether any of the material contained in the matters complained of was true or not? If so:
1. what action was taken;
2. when; and
3. what was the result of the taking of each step?
1. [the "contact with the plaintiff interrogatory"] Prior to publishing the First Matter Complained Of, did the Defendant or any servant or agent of it (and if so identify such servant or agent) contact, or attempt to contact the Plaintiff with respect to the matters complained of? If so:
1. by whom was the contact or attempted contact made on behalf of the Defendant;
2. with whom on behalf of the Plaintiff was the contact or attempted contact made;
3. was the contact or attempted contact in writing or oral, and identify in the case of writing any document, and in the case of oral the substance of such communication;
4. when was the contact or attempted contact made;
5. what was the position of the person making the contact or attempted contact; and
6. in each case, what action was taken as a result of the contact or attempted contact?
1. [the "source interrogatories" (7 and 8)] In respect of each source of information for the First Matter Complained Of, did the Defendant have a view as to:
1. the accuracy of the information furnished by the source;
2. whether the source was biased against the Plaintiff; and/or
3. whether information furnished by the source required corroboration?
1. If the answer to any one of 7(a)-(c) is in the affirmative:
1. what was that view;
2. on what facts, matters and circumstances was the view based; and
3. when precisely was that view formed?
1. [the "alteration interrogatory"] Prior to publishing the First Matter Complained Of, did the Defendant or any servant or agent, alter in any way the content of the material supplied by the journalist/reporter(s) who authored the matters complained of? If so:
1. who;
2. when;
3. what were the details of the alterations; and
4. what was the purpose of the person who made each alteration in making each alteration?
In support of the application for an order that those interrogatories be answered, Mr Richardson provided helpful written submissions. I have drawn heavily from those submissions in what follows. Mr Richardson noted that r 22.1 of the Uniform Civil Procedure Rules 2005 (NSW) has always posed, for an order that any party answer specified interrogatories, the test of necessity. That is the test adopted in the Practice Note. He submitted that the Practice Note, whilst certainly requiring closer supervision of the content of interrogatories by the Defamation List Judge, does not alter that long-standing test.
It may also be noted that, in addition to requiring closer supervision by the Court, the Practice Note is plainly intended to focus the attention of the parties on that issue, specifically directing their attention to questions of necessity and proportionality. Those are different concepts raising different considerations and always requiring attention to the individual circumstances of the case in which the application is made.
Against those observations, Mr Richardson noted that a plaintiff's right to interrogate a defendant as to the information the defendant had in its possession in relation to matter complained of at the time of its publication (the information interrogatory set out above) where qualified privilege is pleaded enjoys long-standing support in authority. He referred, by way of a convenient starting point, to the decision of Hunt J, when his Honour was the defamation list judge, in Palmer v John Fairfax & Ltd (1986) 5 NSWLR 727. His Honour explained, at 729, that the plaintiff is entitled to obtain such information:
because the defendant, in order to establish that its conduct in publishing the matter complained of was reasonable in the circumstances, must demonstrate its belief in the truth of what was published and it must disclose both the nature and the source of the of information which it possessed at the time of publication [citations omitted]
That statement of principle, as noted by Mr Richardson, has received endorsement by a number of judges since that date, including Nicholas J (when his Honour was the Defamation List judge) in Clout v Jones [2011] NSWSC 1430 at [11]-[13]. Mr Richardson submitted that his Honour there upheld a "more punitive" version of the information interrogatory than here proposed, being directed to each imputation rather than the whole matter: and see Kermode v Fairfax Media Publications Pty Ltd (No 2) [2011] NSWSC 646 at [12]-[25].
Mr Richard also referred in his written submissions to a series of authorities dealing with the other interrogatories proposed by the plaintiff in the present case, as follows:
1. Consideration interrogatories were upheld in Howard v Nationwide Publishing Services (Supreme Court (NSW), Hunt J, 26 February 1987, unrep), Yates v Brereton (Supreme Court (NSW), Hunt J, 15 December 1989, unrep), Goold v Newcastle Newspapers Pty Ltd [2000] NSWSC 133 at [19] to [24],
2. Source interrogatories were approved in Clout v Jones & Anor [2011] NSWSC 1430 at [23], Kermode v Fairfax Media Publications Pty Ltd (No 2) [2011] NSWSC at [25] (as going to the defence of honest opinion);
3. Interrogatories directed to intention to convey and belief in the truth were approved in Howard v Nationwide Publishing Services (Supreme Court (NSW), Hunt J, 26 February 1987, unrep), Lewis v Page (Supreme Court (NSW), Hunt J, 15 December 1989, unrep), Yates v Brereton (Supreme Court (NSW), Hunt J, 15 December 1989, unrep), Makin v John and Sons Limited (Supreme Court (NSW), Hunt J, 15 June 1990, unrep) (in relation to the issue of malice).
4. Interrogatories directed to enquiries (both generally and specifically of the plaintiff) and steps otherwise taken than by enquiry were approved in Lewis v Page (Supreme Court (NSW), Hunt J, 15 December 1989, unrep), Hansen v Border Morning Mail (1987) 9 NSWLR 44 at 56 to 58.
Mr Richardson noted that he had not been able to locate any authority dealing specifically with the alteration of the matter complained of prior to publication. I will return to that issue.
On behalf of the defendants, it was argued that, having regard to the introduction of the new Practice Note, such interrogatories should not now be allowed. The defendants observed, no doubt correctly, that the matters the subject of report in the present proceedings have been the subject of a very large number of articles, many prepared by the same journalists as are involved in these proceedings at different times; some probably contributed to by other journalists not involved in the matters complained of in these proceedings.
In that context, a concern was raised as to the breadth of the task that would be involved in answering the interrogatories. In correspondence, the defendants stated to the plaintiff, "In our experience, significant cost is usually incurred answering interrogatories of this type, and they are rarely tendered in evidence against the defendant."
Mr Richardson noted in response to that observation that, even if it is correct, it does not follow that the interrogatories are not "necessary" within the meaning of the rule. He submitted that interrogatories not infrequently expose weaknesses in a defence. That observation, in my view, has particular force in the case of the defence of qualified privilege at common law which, for reasons which are difficult to discern, is very frequently pleaded by media defendants and subsequently abandoned. A function of the Practice Note, it is to be hoped, will be to require defendants to turn their attention to such weaknesses at an early point in the proceedings, a potential saving of cost and delay.
Mr Richardson further observed that such interrogatories serve the function of a tool for cross examining a journalist. Ms Barnett, who appeared for the defendants, submitted in substance that the onus of proving reasonableness of the conduct of the journalist lies on the defendants and on that basis that the plaintiff could have no need for that material before trial, having the opportunity at trial to test the proposition according to the material presented. That, I think, would impose an unfairness on a plaintiff coming to trial without the opportunity to prepare for such cross examination by reference to the interrogatories provided.
Finally, Mr Richardson observed that often the journalist is not called as a witness, in which event there is no need for the answers to interrogatories to be tendered. He suggested that may explain why such answers are not tendered with the frequency with which they are required to be answered. He drew my attention to the careful and lucid remarks of Simpson J in Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587 as follows:
[14] It may of use if I state the approach to the administration of interrogatories which I consider to be appropriate. In my opinion interrogatories can serve a very useful purpose, sometimes a purpose which is not, at the hearing, visible. The questions asked or the answers given may alert the interrogated party to an issue, or may deter persistence of either party in a course that party might otherwise have taken. In these cases, the benefits of the process of interrogation might not be immediately apparent to anybody other than the parties or their legal representatives. It may not be apparent to the judge hearing the case.
[15] Further, in some cases a single interrogatory might obviate the need to call one witness, or a number of witnesses, or to produce documentary or other material, in order to establish a particular relevant fact. In this way, considerable costs and inconvenience might be saved. For these reasons, and despite the contrary views expressed by some others, I am of the view that the odium in which the interrogative process is held in some quarters is not justified by the process itself. It may be that it is justified by the misuse or abuse of a valuable piece of equipment in the armory of litigators.
[16] That I perceive considerable value in the availability of the process of interrogation is not to say that carte blanche should be given to parties wishing to interrogate, particularly where the volume of interrogatories is oppressive or potentially so. Nor is it to say that every interrogatory administered by one party to another will be required to be answered. To be useful, interrogatories must be properly directed to the issues identified after a proper process of pleading, and after full and proper particulars have been supplied. When this occurs interrogatories can do much to narrow the issues actually to be fought, and the scope of the evidence required to be adduced. But it is to be emphasised that this involves a sensible approach to the drafting of interrogatories. The drafter must have both eyes firmly fixed on the issues thrown up by the pleadings. To be useful, interrogatories must be specific to those issues."
Mr Richardson noted that, for example, the revelation that a defendant did not intend to convey an imputation, practically speaking, "tends to wreck a defence of statutory qualified privilege or comment beyond repair." He submitted, with some force, that there is no basis and, particularly, no warrant in the provisions of the Civil Procedure Act 2005 (NSW) for allowing a defendant to keep that information (the fact that a journalist did not intend to convey an imputation) to itself until trial.
I have reached the conclusion that the interrogatories proposed in the present case meet the test of necessity in the rules and, further, that it is appropriate to order that they be answered. I have been persuaded by Mr Richardson's submissions that they are necessary for the resolution of the real issues in dispute in the proceedings.
Leaving aside the alteration interrogatories, each of the interrogatories finds support in the authorities to which Mr Richardson referred. I have given consideration to whether it would be sensible to dispense with the traditional alteration interrogatories which, as already acknowledged, Mr Richardson did not support with any old authority. Upon reflection, I consider it is a necessary interrogatory in the present case because the state of mind of the defendants will be such an important issue in the trial.
Against necessity, the Court must always consider the issue of proportionality, and these interrogatories may not always meet the test, having regard to that competing consideration. In concluding that the interrogatories are necessary in the present case, I would observe that Mr Richardson and those instructing him have taken care to distil the interrogatories in the present case to a practical, sensible minimum.
In that context, two further things may be noted.
First, Mr Richardson accepted that, if the defendant says it did intend to convey the imputations, the consideration interrogatory was not required to be answered. It might be helpful if the order of those two interrogatories were reversed with additional words to reflect that concession.
Secondly, Mr Richardson noted that it is common to answer the information interrogatory in a way that at the same time answers the enquiries and other steps interrogatories.
I have given consideration to whether those three interrogatories could more conveniently be consolidated into one to reflect that practice, but upon reflection I think that would result in a single question which would be too cumbersome. Nonetheless, the concession made by Mr Richardson emphasises the fact that these interrogatories are relatively narrow in their scope.
I direct the plaintiff to serve Interrogatories 2 to 10 and 13 to 21 in accordance with these reasons and the concessions agreed between the parties.
I order the defendant to pay the plaintiff's costs of the application heard last Friday.
I list the matter for hearing on 13 July 2015 for two weeks.
I stand the matter over for directions on 14 November 2014.
[2]
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Decision last updated: 10 March 2015